Ketubot 17a-18: A Chazaka of Three Years
Background: Our passage opens a window on the issue of a chazaka of three years. On what is the mechanism of this chazaka based? What is its force? How does this impact on the nature of the protest that must be made by the original owner and on the issue of protest not in the occupant's presence discussed in our passage?
In the coming shiur, we shall examine the Gemara on p. 17b from the colon, "u-modeh Rabbi Yehoshua," until 18a, at the top, "ki-she'at cherum damu" [students should complete the Gemara until there on their own]. We shall try to understand the law of a chazaka of three years, and consider the matter of protest made not in the occupant's presence that is discussed in our passage. Along with our Gemara, it is important to see also the Gemara in Bava Batra 29a, especially the last explanation that is brought there regarding the law of the chazaka of three years: "Rather Rava said: For one year a man takes care of his deed… and your friend's friend has a friend."
1) Rashi, in our passage, s.v. shenei chazaka. What is the difficulty with which he is dealing, and what is his solution?
2) Ramban, Bava Batra 42a (see below). Analyze his understanding of the law of the chazaka of three years.
3) Do the different understandings of the chazaka of three years suggest different understandings of the issue of protest? What is the significance of the question regarding protest made not in the presence of the occupant?
4) See Rashbam, Bava Batra 39a, s.v. mecha'a, and Rambam, Hilkhot To'en ve-Nit'an 11:5. On what point do they disagree? What do you think would be the Ramban's position on this matter?
Ramban, Bava Batra 42a:
דטעמא דחזקה לאו משום איזדהורי דידיה בלחוד, אלא כיון דהאי שתיק רגלים לדבר, אלא שבתוך שלש אמרינן ליה למחזיק 'אחוי שטרך', ולאחר שלש כיון דלא מזדהר בה טפי אתרע ליה האי טענה, ואמרינן לא לחנם שתק.
Our goal in this shiur is both pretentious and modest. It is pretentious in that we shall try to deal with a heavy topic that slipped into our chapter - a topic to which the Talmud devotes an entire chapter, the third chapter of Bava Batra (Chezkat ha-Batim) – and is the subject of a great deal of discussion. But precisely for this reason, it is also modest – for we shall make no pretensions of fully encompassing the topic, and certainly not of exhausting it. We shall merely deal with two main approaches regarding the foundation of the law, and selected points relating to it.
The Gemara in our passage says as follows:
"And Rabbi Yehoshua agrees that if someone says to his fellow, etc." But let [the mishna] teach: "Rabbi Yehoshua agrees that if someone says to his fellow, 'This field was yours, and I bought it from you,'"!
Because it wished to teach the last clause: "If there are witnesses that it was his, and he says: 'I bought it from him,' he is not believed." How do we visualize the case? If he consumed it [the produce during] the years of chazaka, why is he not believed? And if he did not consume it [the produce during] the years of chazaka, it is obvious that he is not believed! (Ketubot 17b)
The Gemara's initial assumption is exceedingly clear, and we have already mentioned it in the past: "If there are witnesses that it was his, and he says: 'I bought it from him,' he is not believed. How do we visualize the case?… And if he did not consume it [the produce during] the years of chazaka, it is obvious that he is not believed!" In contrast to movable goods, regarding which the current holder wins out against the original owner, and is believed in his claim that he had purchased the article from him – in the case of landed property, the original owner wins out, and the burden of proof falls upon the current occupant who claims that he had purchased the property from the original owner. The reason for this is twofold:
1) The physical chazaka in the case of movable goods is much more significant than the chazaka regarding landed property. The current occupant of the land does not actually hold the property in his hand; he merely dwells upon it, while the land remains in its place.
2) The idea of "original owner" with respect to landed property is more significant than with respect to movable goods. The reason is that land is property that has an identity and a title. Its title is determined by its owner, and it continues to be called by that name even when another person occupies it.
The normal way one proves that he bought a field is by producing the deed of sale. In a case where he cannot produce this deed, the current occupant of the land can use the chazaka of three years. If a person holds possession of a piece of land for three years during which time the original owner could have contested the possession but said nothing, and after three years the original owner tries to repossess the property, the person holding possession will win out in court and be granted the right to remain on the land, despite the fact that he has no deed attesting to his purchase of the property. It goes without saying that this law requires explanation.
The View of Rashi – A Rabbinic Enactment
Rashi on our passage says something of great importance in this context:
"Years of chazaka" – three years, for the Sages enacted on behalf of all people in possession of land, that if [the occupant] consumed [the land's produce] for three years, arousing no protest, he is believed to say that he had bought [the land] but lost the deed, because a person does not keep a deed that long.
In order to understand the background of Rashi's words, the difficulty with which he is struggling, and the solution that he is proposing, we must start with a short introduction.
The Gemara at the beginning of chapter Chezkat ha-Batim raises the question: "From where [do we derive] the chazaka of three years?" (Bava Batra 28a). It suggests several possible answers and notes the problems with them. Rashi in our passage is relating to the last approach proposed there:
Rather Rava said: For one year a man guards his deed, and so for two and three years does he guard; beyond that he does not guard. (29a)
The assumption is that after a person holds uncontested possession of a certain property for three years, he is no longer diligent about his deed of purchase. This, of course, explains why we cannot come to him, and say: "If you really bought the property as you say, where is your deed of purchase?" But it does not explain why he should win in court, as the Ketzot ha-Choshen asks:
This still requires explanation. Granted that the fact that he does not have a deed is not a rei'uta [= something that undermines his position], because a person does not take care [of his deed] for more [than three years], but the bottom line is that he has no proof. How then do we remove [the property] from the original owner without proof? (140, no. 2)
Rashi appears to have been troubled by this question, and he answers that indeed there is no proof supporting the occupant's claim, and we should have ruled in favor of the original owner. However, since this situation creates a problem for people buying landed property – because after several years of uncontested possession, it is only natural to stop taking care of the deed of purchase – the Sages enacted that after three years of uncontested possession a person is believed in his claim, "I bought the property but lost the deed." These words of Rashi are the source of the position generally associated with the Ketzot that the regulation regarding a chazaka of three years is fundamentally a rabbinic enactment.
Though this position seems to be clear and simple, there are several ways to understand it. One possibility is that the Rabbis enacted that we rule in favor of the person in possession despite the fact that we don't really believe him, because otherwise buyers would suffer a loss, and therefore we must establish a limit as to how long the original owner can sue to regain his property. This follows from the words of the Re'a in the Shita Mekubetzet on Bava Kama: "Chazaka is not absolute proof; it is possible that he consumed [the produce] for three years, even though it is not his. Only that the Rabbis enacted [the chazaka] because a person is not careful with his deed" (39a). This is also the view of Maharam of Rotenburg brought in Teshuvot Maimuniyot: "Since [the original owner] could have protested, but failed to do so, the Rabbis enacted that we not seize [the property] from the buyer, or [require him to] take care of his deed for a longer time" (Ishut, end of no. 5). The implication is that we give no credence whatsoever to the person in possession. But nevertheless the Sages enacted that if the original owner failed to protest during the designated period – the time during which the buyer takes care of his deed – we do not seize the property from the current occupant, and he no longer needs to hold on to his deed of purchase. The chazaka may be seen as sort of a statute of limitations.
The Tosafot ha-Rosh in Bava Metzia (110a, s.v. ve-amar) takes an entirely different approach:
For we are witnesses to the fact that a person does not leave his property in the hands of another person for three years without raising a protest unless he sold it [to him]. For everyone knows that the Sages enacted that a chazaka of three years stands in place of a deed, because a person cannot take care of his deed forever. And they also enacted that a protest cancels the chazaka where the occupant took illegal possession [of the property].
The Rosh implies that the mechanism of a chazaka of three years is based on two stages. The first stage: "The Sages enacted that a chazaka of three years stands in place of a deed, because a person cannot take care of his deed forever." We are dealing with a rabbinic enactment that in such a situation the courts must rule in favor of the current occupant. But here we come to the second stage: Since "everyone knows that the Sages made the enactment," "we are witnesses [anan sahadi] to the fact that a person does not leave his property in the hands of another person for three years without raising a protest unless he sold it to him." That is to say, the enactment creates a situation of "anan sahadi" – "we are witnesses" – which constitutes proof, the force of which may very reasonably be argued is by Torah law. It is unreasonable for a person not to protest when he knows that after three years of uncontested possession the land will be awarded to its current occupant, and therefore the original owner's silence testifies against him with the force of a thousand witnesses.
One possible practical ramification regarding the question of chazaka's final status – by Torah law or by rabbinic enactment – may be the question of whether the chazaka of three years may be used as a proof regarding divorce. This matter requires further study in light of the talmudic passage in Gittin 20b, but this is not the forum to expand upon the issue.
The View of the Ramban
We mentioned above the view of Rava who bases the regulation of the chazaka of three years on the fact that after three years a person does not take care of the deed of purchase to his property. We noted the difficulty with this explanation, that even though it explains why we cannot come to the current occupant with the claim, "If you really bought the property as you say, where is your deed of purchase?" – it does not explain why the occupant wins the case against the original owner. The approach that we have seen thus far resolves the problem by invoking a rabbinic enactment. Let us now consider a different approach that arises from the words of the Ramban in Bava Batra:
The rationale behind chazaka is not only because of his taking care [of the purchase deed]. Rather, since the other party was silent, there is raglayim la-davar [= foundation], only that during the three [years] we say to the occupant, "Show us your deed." But after three [years], since he is no longer careful about it, this argument becomes impaired, and we say that it was not for naught that the other party was silent.
According to the Ramban, the three years of chazaka divide into two stages. During the first stage there is a factor that works in favor of the person in possession – a "raglayim la-davar" that he is right, for otherwise why does the original owner remain silent. But nevertheless we rule against the current occupant, because we come to him with the argument, "Show us your deed." The fact that he is unable to produce the deed as would have been expected works as a rei'uta against his claim. Now we come to the second stage. What Rava says, that after three years of uncontested possession, a person no longer takes care of his deed of purchase, explains the need for three years. For after that time we cannot come to the occupant with the argument, "Show us your deed," because the absence of a deed of purchase is no longer considered a rei'uta working against him.
It is important to note that the second stage only plays a negative role – removal of the rei'uta working against the person in possession of the property. The heart of the matter is the first stage, which constitutes the basis for the fact that before the chazaka is established we rule in favor of the original owner, whereas after the chazaka is established we rule in favor of the occupant – the "raglayim la-davar" created in the wake of the original owner's silence.
Here we come to a certain difficulty. The term "raglayim la-davar" implies that we are not dealing here with certainty, but rather with something like a rov – it is highly likely that the current occupant is right, for a person does not usually remain silent when another person illegally settles himself in his house. As may be recalled from our shiur on "most women are married as virgins," we rule in accordance with the position of Shmuel (Bava Batra 92b) that we do not remove money from a person in possession of the money merely on the basis of a rov. If we assume that the original owner of the property enjoys presumptive possession of it, how then can we remove the property from him on the basis of a rov? With the help of what we suggested in previous shiurim, we can propose two possible answers to this question:
1) Here we are dealing with a strong rov, and such a rov can be invoked to remove money, as argued by the Tosafot in Sanhedrin 3b, s.v. dinei.
2) We are dealing here with a regular rov, which cannot remove money. But removing the land from the original owner in favor of its current occupant is not considered as "removing" for this purpose, for we cannot ignore the fact that he currently enjoys de facto possession of the land, and therefore the rov in favor of the current occupant is effective.
It is possible, however, to understand the Ramban in a different manner that will remove the question. It may be argued that the "raglayim la-davar" in our case is not a proof that removes the property from the original owner, but rather a factor that changes the identity of the person presumed to be in possession of the property. The person presumed to be in possession of the property is the party whose name is attached to it, and this is connected to the question who is seen by the court as owner of the property. Generally speaking this is the original owner, because his name is still attached to the property. But when there is "raglayim la-davar" in favor of the current occupant, it is he who appears to us as the legitimate owner, because the person contesting his possession did not conduct himself as would have been expected from an owner. In the case of movable goods, the presumption of possession is not undermined by a weak hold, for there the article is found in the physical possession of its current holder. But in the case of land, where the presumption of possession bears a more legal character, and is associated with tithe, such a factor can impair the chazaka.
We have distinguished between understanding the chazaka of three years as a factor serving as proof and understanding it as a factor shifting the presumptive possession. This distinction finds striking expression in the words of the Tosafot in Bava Metzia (110a, s.v. amar lei). They understand that when the current occupant brings witnesses to the fact that he had enjoyed three years of uncontested possession, the original owner can no longer argue that the occupant is there illegally. He is, however, still believed to say that the occupant is there in the framework of an agreement between them – he had acquired the land for its produce or mashkanta. On this the Tosafot ask why don't we say that the original owner should always be believed, even if he argues that the occupant had stolen the land from him: "The [original] owner of the land should be believed to say that [the current occupant] stole [the property] based on a miggo argument that had he wished [to lie] he could have said it was a mashkanta in his hands, or else he had acquired it for its produce!" Let us examine two of the answers suggested by the Tosafot:
You can say that this is a miggo where there are witnesses, for we are witnesses to the fact that had he stolen [the property], [the original owner] would not have remained silent, but rather he would have protested. Or else it is considered a miggo to remove money, for he ate [the produce during] the years of chazaka.
It is clear from the words of the Tosafot that the first answer sees the chazaka as proof, and therefore the miggo argument cannot stand up against it, for it is like a miggo against witnesses. And it is similarly clear that the second answer sees chazaka as shifting the presumptive possession from the original owner to the current occupant, to the point that the miggo in favor of the original owner is regarded now as a miggo to remove money.
Protest Not In The Occupant's Presence
In light of what we have seen thus far, we shall now try to understand the nature of protest and the issue discussed in our passage: protest not in the occupant's presence.
What is the role of protest? This, of course, depends on how we understand the mechanism of a chazaka of three years. According to Rashi, the rabbinic enactment only gives credence to one whose occupancy arouses no protest: "If [the occupant] consumed [the land's produce] for three years, arousing no protest, he is believed to say that he had bought [the land] but lost the deed." The protest, then, pulls the carpet out from under the enactment.
Regarding the Ramban, we must examine the matter separately with respect to each stage. During the first stage – silence that creates "raglayim la-davar" in favor of the current occupant – the protest simply brings about that there is no "raglayim la-davar." During the second stage, however, after the "raglayim la-davar" has already been created, and all that is left is to deal with the rei'uta working against the occupant of "Show us your deed," the protest plays a different role. The protest is meant to warn the occupant to continue to hold on to his deed, for now he knows that someone is contesting his possession. The rei'uta of "Show us your deed" continues even after the three years.
Now let us try to analyze the law of protest not in the occupant's presence. It would seem that there is room to analyze this phenomenon as an expression of protest on the part of the original owner that is not meant to reach the ears of the occupant. Is such a protest effective? According to Rashi, the matter depends on the parameters of the enactment instituted by the Sages. But what about the Ramban? On the face of it, it would seem that a distinction should be made between the two stages: During the first stage the protest works, for it prevents the creation of "raglayim la-davar" against the original owner – he did not remain silent. But during the second stage the role of the protest is to warn the occupant to take care of his deed of purchase. If the protest did not actually reach the occupant's ears, the rei'uta should become cancelled at the end of three years, for there is no reason for him to hold on to the deed.
It seems, however, that this analysis is incorrect, for several reasons:
1) The Gemara presents a general disagreement regarding the question whether or not a protest made not in the presence of the occupant is a valid protest, without suggesting that a distinction be made between the two stages. In general, attention should be paid to the fact that the Ramban makes no effort to point out the precise division between these two periods, and so it is difficult to assume that there are significant differences in law between them.
2) Even when we allow protest made not in the occupant's presence, this does not mean that the protest need not reach the occupant's ears. When the Gemara in Bava Batra 29a brings the words of Rava, that the reason for the chazaka of three years is that a person does not take care of his deed for more than three years, the Gemara adds that Abaye raises an objection: "If that is so, then [it would follow that] a protest made not in the presence of the holder is no protest, since the latter can say, 'If you had protested to me in my presence, I would have taken more care of my deed'?" That is to say, if the role of the protest is to lengthen the period of the rei'uta of "Show us your deed," the protest must reach the current occupant's ears. Rava answers this objection: "The other can retort: '[You must have known of my protest because] your friend has a friend and your friend's friend has a friend.'" That is to say, it is possible to allow protest not in the presence of the occupant, but only based on the assumption that even such a protest will reach the ears of the occupant.
If so, there is no reason to disqualify a protest made not in the occupant's presence even during the second stage, because such a protest is meant to reach the occupant's ears. Theoretically, however, it is still possible to propose a practical difference between the two periods. The Rashbam in his commentary to Bava Batra writes:
Since he protested not in the occupant's presence, it is a protest, for it can reach his ears, and even if the occupant did not know about the protester's protest, we are not concerned, since he protested in proper manner. (39a, s.v. mecha'a)
That is to say, it is not necessary that the protest actually reach the occupant's ears, but only that it be meant to reach his ears. It is possible that the role of protest is to establish that the original owner has not remained silent, so that no proof be brought against him owing to his silence. But were he to protest in such a way that the protest is not meant to reach the occupant's ears, it would not be regarded as protest. In any event, it is irrelevant what actually reached the occupant's ears. The Rambam may disagree on this point:
If Shimon protested in a distant land, why can't Reuven claim: I did not hear that he had raised a protest against me so that I should take care of the deed? Because he can say to him: Your friend has a friend, and his friend has a friend, and it may be presumed that the matter reached you. And since you knew that he had raised a protest against you during the three years, if you really had a deed but didn't take care of it, it is you who brought the loss upon yourself. (Hilkhot To'en ve-Nit'an 11:5)
The words of the Rambam imply that the reason that the argument that "I did not hear that he had raised a protest against me" is not valid, is not that the original owner protested in proper manner, but rather that we assume that the current occupant is lying, and that the protest actually reached his ears. If the witnesses before whom the original owner protested testify that they never told anybody about the protest, it stands to reason that such a protest would not be regarded as a valid protest.
We are not dealing here with an analysis of the positions of the Rashbam and the Rambam regarding the chazaka of three years – a very complicated task in itself – but with an analysis of the position of the Ramban. It would seem that according to him we should distinguish with respect to this point between the two periods. During the first period the role of the protest is to prevent the creation of "raglayim la-davar" against the original owner owing to his silence, and for this purpose it makes no difference whether or not the protest actually reached the occupant's ears (though there is room to require protest that is meant to reach his ears). During the second period, on the other hand, the role of the protest is to cause the occupant to continue holding on to the deed, and here it stands to reason that if we know that the protest did not actually reach his ears, it will not be regarded as a valid protest.
However, as we emphasized above, it is very difficult to distinguish with respect to the laws of protest between the two periods, when there is no hint of this in the Gemara or in the words of the Ramban, and the Ramban didn't even fix the duration of the first period.
We may be able to explain the matter with the help of a novel insight proposed by the Chidushei ha-Rim in his novellae to Choshen Mishpat (140, no. 1). The Chidushei ha-Rim raises a serious objection against the Ramban. It is clear from various passages in Bava Batra that the current occupant must prove that he had occupied the land for three years. According to the Ramban, this is difficult. For if the occupant can prove that he had dwelt on the land during the first period, thus creating the "raglayim la-davar," it should be enough if three years passed since then, and therefore he has a convincing explanation as to why he no longer has the deed to the property. Why does he have to prove this? Surely he successfully provided the basic proof, and now there is no rei'uta working against him, for he has an answer to the question, "Where is your deed."
The Chidushei ha-Rim answers that in practice there are no two stages in the framework of the chazaka of three years according to the Ramban. Theoretically, a short period would have sufficed to establish "raglayim la-davar" against the original owner owing to his silence – one year, one consumption of the produce, or some other criterion. However, since in practice people know that they can wait almost three years and protest at the last minute and achieve the same results, the original owner's silence does not constitute "raglayim la-davar" against him until the end of the three years. That is to say, the fact that people are aware of the law of three years causes a change in reality and thus also in the law – in practice the two periods unite into one, and the duration of the period required to create "raglayim la-davar" lengthens. This is also implied by the way that the Ritva in Bava Batra 42a cites the Ramban: "The essence of the chazaka is that since [the original owner] knew, he should have protested, but since a person takes care of his deed [of purchase] for three years, they extended the chazaka for him to three years."
In light of this novel idea, we can go back to the issue of protest and explain why the Ramban does not have to distinguish between the two periods with respect to the parameters of the protest. The Ramban can accept the view of the Rashbam, that it suffices if the protest was meant to reach the ears of the occupant, because "your friend has a friend," even if in practice the people before who the original owner raised his protest testify that they never told anybody about it. Such a protest causes that the original owner's silence not be regarded as proof against him, and thus there is no basis to rule in favor of the occupant. This, however, is only true during the first stage, which is responsible for creating the "raglayim la-davar." But, as the Chidushei ha-Rim argues, in actual practice this stage continues for three full years.
(Translated by David Strauss)
 One who examines Aliyot de-Rabbenu Yona, Bava Batra 29a, s.v. ela, will see that while he too mentions a rabbinic enactment, he adopts an approach that is different from the two that we have already seen, but in the framework of this shiur, we are forced to pass on a discussion of his position. Another unique position that we cannot deal with here is that of the Rashba, Bava Batra 29a, s.v. ela.
 Of course, it could be argued that the Ramban does not mean a rov, but rather a factor involving certainty, as may indeed be inferred from his wording in a different passage: "Since he failed to protest, he certainly sold it to him" (Bava Batra 29b). It seems, however, that this understanding is difficult from several different passages, and even difficult to read into the Ramban's words on p. 42a, and therefore it stands to reason that the Ramban does not really mean actual certainty.
 In our shiur regarding "a slaughtered ox before you," we saw that the Amoraim disagree about a similar question regarding miggo – is a miggo in favor of the occupant and against the original owner regarded as a miggo to remove money. The Ran on the Rif (Bava Batra 30b) argues that the Amoraim in Bava Batra 30b disagree on this question with respect to a rov in favor of the occupant and against the original owner.
 56b, 29a, and elsewhere.
 See, for example, Ritva, Bava Batra 29a, and Chidushei ha-Ran, Bava Batra 56b.